Protection of Freedoms Bill

34: After Clause 38, insert the following new Clause— ““Matters subject to legal privilege Investigatory powers: legal privilege (1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert— ““(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to— (a) a communication, insofar as the communication consists of matters subject to legal privilege; (b) communications data, insofar as the data relate to the communication of matters subject to legal privilege. (8) In subsection (7), ““matters subject to legal privilege”” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose. (9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose. (10) A code of practice issued under section 71 may in particular contain provision about— (a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7); (b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”” (2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert— ““(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege. (11) In subsection (10), ““matters subject to legal privilege”” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose. (12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose. (13) A code of practice issued under section 71 may in particular contain provision about— (a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section; (b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”” (3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert— ““(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about— (a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or (b) matters subject to legal privilege. (6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of— (a) obtaining matters subject to legal privilege, (b) providing access to any matters subject to legal privilege to another person, or (c) disclosing matters subject to legal privilege. (7) In subsection (5), ““legal consultation”” means— (a) a consultation between a professional legal adviser and his client or any person representing his client, or (b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings, except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose. (8) In subsections (5) or (6), ““matters subject to legal privilege”” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose. (9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose. (10) A code of practice issued under section 71 may in particular contain provision about— (a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done; (b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.””